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Legal highlight – new amendments to the employment legislation in Mauritius | Dentons

The Finance (Miscellaneous Provisions) Act 2022 came into force on 2 August 2022 and amended several Mauritian legislations to provide for the implementation of the measures announced in the annual budget 2022-2023. This article aims to provide a brief alert on the amendments or new additions made to the legal landscape of the employment sector in Mauritius.

The definition of “worker” has been broadened

  • A “worker” within the ambit of the Workers’ Rights Act 2019 now includes a person who is classified as a service provider but who personally performs the same or similar work of a comparable worker employed in the same enterprise or industry. This will also include a person regardless of whether or not he holds a business registration number, but it will not include a consultant.

Allowance payable where work is performed on a day on which a cyclone warning class III or IV is in force

  • Welcome clarifications have been made to the fact that an allowance equal to three times the basic rate per hour is payable to a worker who is required to work, regardless of whether from home or at his workplace when a cyclone warning class III or IV is in force.

Free meal or meal allowance

  • The employer must provide for an adequate free meal or pay a meal allowance of MUR 85/day where an employee is required to perform a normal day’s work of at least 10 hours.

Leaves

  • The ceiling of a maximum of 90 days for accumulating outstanding sick leave for workers earning a monthly basic salary equal or less than MUR 50,000 has been removed.
  • Leave to care for a sick child has been introduced in the legislation. A worker earning a monthly basic salary equal or less than MUR 50,000 is allowed to take up to 10 days’ paid leave during every period of 12 consecutive months to be calculated at his option against his annual, sick or vacation leaves.

Petrol Allowance

  • Where a worker, irrespective of his basic salary, was granted a petrol allowance, the allowance payable as from 1 July 2022 must be at least 10% higher than the allowance payable in December 2021 capped to a monthly increase not exceeding MUR 2,000.

Termination of employment

  • It is now strictly prohibited to terminate employment on the basis of a worker’s poor performance if the worker’s performance is being affected as a result of an injury sustained out of and in the course of work.
  • The opportunity to answer a charge in relation to alleged misconduct, misconduct subject to criminal proceedings or poor performance is not confined to a disciplinary hearing only. It has been clarified that the explanation can be afforded in writing, in an oral hearing, or in an oral hearing following written explanations being obtained.
  • Termination can follow no later than seven days after the worker has answered the charge in writing, in an oral hearing, or in an oral hearing following his written explanations.

Reinstatement

  • Where employment is terminated by the employer for any reason, other than reasons related to redundancy or closure, the employee has the option of claiming reinstatement instead of severance allowance.
  • The claim must be registered at the labor office which then, subject to there being a bona fide case, refers the matter to the Employment Relations Tribunal.
  • The jurisdiction of the Industrial Court has been ousted for claims of reinstatement.

Redundancy

  • Where the Redundancy Board finds that the reasons for the notification for reduction or closure are unjustified, it shall order the employer not to reduce his workforce or close his enterprise. In case of any breach of such an order, the employee may apply to the Redundancy Board for reinstatement or payment of severance allowance.
  • Where a settlement is reached following the conciliation or mediation service provided by the Redundancy Board, such a settlement can now be enforced in the same manner as an order of the Industrial Court.

Portable Retirement Gratuity Fund

  • Employers are no longer exempted from contribution merely because they contribute to a retirement plan with a private pension scheme, unless a written certification is obtained by the actuary of the private pension scheme certifying that the share of the employer’s rate of contribution to the private pension scheme is not less than 4.5% of the monthly remuneration of the employee. The actuarial certificate must be submitted to the Ministry of Labour.
  • Failure to submit the above-mentioned actuarial certificate entails a liability on conviction to a fine ranging from MUR 50,000 to MUR 150,000 and to imprisonment for a term not exceeding 12 months.
  • The provisions for the contribution of past services have been clarified. Contributions for past services must be paid to the Mauritius Revenue Authority one month after the date of termination or resignation as follows:
    • where employment is terminated by the employer, as from the date of commencement of employment; or
    • in case of resignation, as from 1 January 2020.

Trade union matters

  • The right to access the workplace by any officer or negotiator of a recognized trade union is extended for employment issues of not only its members, but also of workers forming part of the same bargaining unit for which the trade union has been granted recognition.
  • Upon request from the recognized trade union, the employer must now provide all information regarding wages and conditions of employment of workers within its bargaining unit.
  • The recommendation of a Salary Commissioner as to the wages or other terms and conditions of employment is not subject to bargaining with the recognized trade union outright. The recommendation is only subject to collective bargaining if it has been approved by the employer.

Statutory contributions

  • The National Savings Fund, HRDC Training Levy and Contribution Sociale Généralisée are non-contributable for non-citizen employees who are not resident for tax purposes or who hold a premium visa.

Please note that not all of the amendments have been listed above.

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